America’s Nonexistent Constitutions
By Bryan A. GarnerDecember 9, 2012
America’s Unwritten Constitution by Akhil Reed Amar
IN 1881, THE GREAT 19th century expositor of constitutional law Thomas M. Cooley wrote that one of the weaknesses of a written constitution — unlike Great Britain’s unwritten constitution — is that “it establishes iron rules, which, when found inconvenient, are difficult of change.” Thirty years later, in 1911, the dean of the University of Texas School of Law, John C. Townes, expressed the then-mainstream view that principles enshrined in the U.S. Constitution are both “fundamental” and “permanent.” Their meaning was thought to be fixed.
Since the mid-20th century, though, left-leaning thinkers have fought to be free from the prison of the text, especially the prison of the words of the U.S. Constitution. Though sworn to uphold the Constitution, certain Supreme Court justices have sought ways to unshackle themselves and their successors. To the extent that they have done so, it has been by finding “penumbras” and “emanations.” This all made constitutional law much more interesting to academicians: the subject became not so much about the document in the National Archives as about “wise policy” — always in the eye of the beholder and always subject to endless disputation, casuistry (in the neutral sense, if you like), and sophistry (yes, in the pejorative sense).
Now comes Akhil Reed Amar, with an exuberant, copious, and loquacious book about constitutional interpretation: America’s Unwritten Constitution: The Principles and Precedents We Live By. But he goes well beyond penumbras and emanations. Perhaps seeking a Guinness Book record, Amar identifies not just one or two Constitutions to be interpreted, but a dozen:
- The Enacted Constitution: Amar undermines the constitutional text by trying to demonstrate that we don’t actually know what the “official” version says anyway. And he goes on about “the Year of our Lord” about five times longer than one might have thought possible, debating with himself about whether that reference in the Constitution collides with the First Amendment.
- The Implicit Constitution: Amar relies mostly on the predicate-act canon and the whole-text canon. The duty to do X includes the authority to do Y if Y is necessary to carry out X. On the whole, he stands on pretty firm ground here.
- The Lived Constitution: You have a constitutional right “to have a pet dog, to play the fiddle, to relax at home, to enjoy family life with your loved ones, to raise your children, to wear a hat.” You get the idea. So how do you enforce your warm and cuddly constitutional right to “enjoy family life with your loved ones”? Amar doesn’t say.
- The Warrented Constitution (that’s not a misspelling but a lame pun in homage to Chief Justice Earl Warren): The Warren Court (1953-1969) honored the “spirit” of the Constitution (and the letter, too, Amar argues unconvincingly). The Warren Court, of course, represented the official unmooring of constitutional law from the words of the document that the Court was supposed to be “interpreting.”
- The Doctrinal Constitution: Amar asserts that Roe v. Wade was correct because it was “rights-expanding”: he argues that “a case that construes a textual constitutional right too narrowly is different from one that construes the right too broadly. Even if both cases come to be widely embraced by the citizenry, only the rights-expanding case interacts with the text of the Ninth and Fourteenth Amendments so as to specially immunize it from subsequent reversal.”
- The Symbolic Constitution: “The most important thing to understand about America’s symbolic Constitution is simply that it exists, Amar writes:
Americans of all stripes can easily name certain texts that stand outside the confines of the written Constitution yet operate in American constitutional discourse as privileged sources of meaning, inspiration, and guidance. True, once we move beyond this core set of texts, the outer boundaries of the canon are fuzzy.
Amar’s examples: the Gettysburg Address and Martin Luther King’s “I Have a Dream” speech.
- The Feminist Constitution: In Amar’s view, all law relating to women was undermined by women’s suffrage: “under an entirely plausible vision of America’s unwritten feminist Constitution, judges soon after 1920 could have held that laws such as these [relating to contraception and abortion] were valid only if reenacted by a legislature elected by women voting equally alongside men. As for these laws, perhaps judges should have wiped the legal slate clean in 1920, by striking down the old laws and thereby obliging states to put the matter to a fresh vote.” To quote this is to refute it.
- The Georgian Constitution (the name is based on that of George Washington): This chapter is mostly padding based on George Washington’s presidential (and precedential) actions. Perhaps it was intended to relieve traditionalists after the unreality of the preceding chapter.
- The Institutional Constitution: Again, this is padding for traditionalists. “[P]ost-1789 institutional practice thus furnishes a powerful lens through which to read the 1789 blueprint.”
- The Partisan Constitution: “Most of the rules and roles textually delineated in the original Constitution — for House members, senators, department heads, vice presidents, members of the electoral college, and so on — must today be reread through the prism of America’s two-party system.” But why?
- The Conscientious Constitution: Here we get to the personal preferences of judges: “[T]here is a proper place for conscience — a concept that forms part of the necessary, albeit unwritten, substratum of American constitutionalism.” If you’re a judge, follow your bliss.
- The Unfinished Constitution: This is the great morphing Constitution that is “still to be written, the hoped?for Constitution of 2020 — and of 2121 and 2222.” This constitutional morphing is our “constitutional donation.” Amar’s doubt about it is confirmed in his use of surely: “Though this [donation] does not reside on the clear surface of any explicit constitutional text, surely it forms an integral part of America’s unwritten Constitution.”
Seriously. There are 12 Constitutions, according to Amar. If you’re a judge, pick the one you’d like to construe, impart your interpretation, and Bob’s your uncle.
As for those unimaginative souls who still believe that the Constitution remains the same document that was enacted in 1787, Amar has his favorite iterations of insults (here from the first four percent of the book):
- “literalistic and clause-bound
- “literal and flatfooted . . . even perverse”
- “narrow, literalistic, autistic”
What Amar wants is an oxymoron: “staying true to the written Constitution while going beyond it.” Go any which way you like, as long as your interpretations are “rights-expanding” (left-leaning) and overbroad. You can’t go wrong.
I recognize that Amar has a copious, wide-ranging, and stimulating intellect. The book is full of insights that could be put to good use. It’s just that Amar hasn’t done so. He has tried as strenuously as any other like?minded scholar to undo the old doctrine that a written constitution is permanent.
It’s a sign of the times. O tempora! O Amar!
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